The Department of Health and Social Care (DHSC) and the Ministry of Justice proposed changes to the Mental Capacity Act (2005) Code of Practice, which includes guidance on the new Liberty Protection Safeguards (LPS) system. This article outlines how the new scheme for authorising deprivations of liberty will be put into practice.

The LPS was introduced by the Mental Capacity (Amendment) Act 2019 to replace the Deprivation of Liberty Safeguards (DoLS) and Court of Protection authorisations of arrangements not covered by DoLS. Though the LPS has the same overall purpose as the DoLS, the new system is designed to be more streamlined and will put the person at the centre of the decision-making process. The LPS will introduce an explicit duty to consult with the person, and those interested in their welfare, to establish the person’s wishes and feelings about the proposed arrangements. Those who are close to the person will also be able to provide representation and support them via a new ‘Appropriate Person’ role.

The LPS will also cover a wider range of settings than just hospitals and care homes. The new system will also provide protections to people receiving care or treatment in their own homes or in private domestic accommodation. A decision from the Court of Protection will no longer usually be needed for deprivations of liberty that occur in these settings. This will make access to safeguards more straightforward and quicker, for more people.

The aim is for LPS to become part of mainstream healthcare and social care assessments and planning, including the Care Act 2014 care and support planning. LPS will make the overall process more straightforward for the person and easier for local authorities by reducing duplication. The number of assessments required will be reduced from six to three, and in some cases, local authorities will be able to renew authorisations without having to restart the process each time.

Implementing the LPS

The implementation of the LPS will involve big changes for the health and social care system, and the people who rely on it. The government had hoped to fully implement the LPS by April 2022. However, it is paramount that the implementation of the LPS is successful so that the new system provides the safeguards that are needed. Given the impact of the Covid-19 pandemic on the sectors and professionals who will be called upon to implement these important reforms, the government decided to postpone, and reconsider their aim to implement the LPS by April, to have adequate time to prepare the new system.

The government is now consulting on six sets of draft regulations which will underpin the new system. When enacted, four of these sets of regulations will apply in England only, and the remaining two sets of regulations will apply to both England and Wales.

Guidance on the implementation of LPS is available here: www.gov.uk/government/consultations/changes-to-the-mca-code-of-practice-and-implementation-of-the-lps